OR R APPT COUNSEL Standard IV § 7G(g)

Qualification Standards for Appointed Counsel, Standard 3.1

Oregon Revised Statutes

Qualification Standards for Court-Appointed Counsel to Represent Indigent Persons At State Expense

Standard 3.1 Qualifications To Serve As Appointed Counsel for Indigent Persons By Case Type

Subject to the provisions of Standard 4.1, the appointing authority shall appoint only those attorneys who:

1. Are members of the Oregon State Bar or are attorneys of the highest court of record in any other state or country who will appear under ORS 9.241;  and

2. Either:

a. Meet the qualifications specified below for the applicable case type;  or

b. Possess significant experience and skill equivalent to or exceeding the qualifications specified below, and who demonstrate to the appointing authority's satisfaction that the attorney will provide competent and adequate representation;  and

3. Have adequate legal research access and adequate facilities to ensure reasonable and timely personal and telephonic contact between attorney and client and between the court and attorney.

a. Adequate facilities include sufficient support staff or answering service/machine for receiving messages and notifying clients of court dates.

b. Adequate legal research access includes the attorney's office is located convenient to a law library of sufficient size or the attorney has "on-line" or other electronic access to ensure the attorney has ready access to legal references and research material;  and

4. Have reviewed and are familiar with the Oregon State Bar's Indigent Defense Task Force Report, "Principles and Standards for Counsel in Criminal, Delinquency, Dependency and Civil Commitment Cases" (Approved by the Board of Governors September 25, 1996), Exhibit C to this policy statement.

These standards establish and specify qualifications for each of the following case types:

A. Misdemeanor cases and misdemeanor probation violation proceedings in trial courts.

B. Lesser felonies (all Class C felonies other than homicides and drug cases), felony probation violation proceedings, and contempt proceedings in trial courts.

C. Major felonies (all A and B felonies, all drug felonies, and all homicides other than murder and capital murder cases) in trial courts.

D. Murder cases in trial courts.

E. Capital murder cases other than in postconviction proceedings in trial courts.

F. Civil commitment proceedings in trial courts.

G. Juvenile proceedings in trial courts.

H. Appeals other than in murder and capital murder cases.

I. Appeals in murder and capital murder cases.

J. Postconviction proceedings in murder and capital murder cases.

K. Postconviction proceedings in other cases.

L. Habeas corpus proceedings.

A. Misdemeanor Cases and Misdemeanor Probation Violation Proceedings.  An attorney or certified law student is qualified for appointment to misdemeanor cases and misdemeanor probation violation proceedings if he or she:

1. Has reviewed and is familiar with the ABA Standards for Criminal Justice (2d ed.), Chapters 4, 5, 10 through 15, and 20 through 22;  the Code of Professional Responsibility;  the Criminal and Evidence Codes of Oregon, as set forth in ORS Chapters 40, 131-169, 471, and 475;  the Uniform Trial Court Rules;  and Oregon State Bar, Criminal Law (1986);  and

2. Satisfies one or more of the following:

a. Has been certified under the Oregon Supreme Court Rules on Law Student Appearances to represent clients on behalf of a public defender office, a district attorney office, or a private attorney office in criminal cases;  has undertaken such representation for at least six months;  and can present a letter from the student's immediate supervisor certifying the student's knowledge of applicable criminal procedure and sentencing alternatives;  or

b. Has observed five complete trials of criminal cases that were tried and submitted to a jury;  or

c. Has served as counsel or co-counsel in at least two criminal cases that have been tried and submitted to a jury;  or

d. Has served as co-counsel in at least five criminal cases.  Such service shall have included attendance at all court appearances and all client interviews in each case;  or

e. Has served as a judicial clerk for a court that regularly hears criminal cases;  or

3. In lieu of the above qualifications, possesses significant equivalent experience under Standard 3.1.2.b.

B. Minor Felony Cases;  Felony Probation Violation Proceedings;  Contempt Proceedings.  Lesser felony cases include all Class C felonies other than homicides and drug cases.

An attorney is qualified for appointment to lesser felony cases, felony probation violation proceedings, and contempt proceedings if he or she:

1. Meets the qualifications specified in Section A;  and

2. Has continued to meet the qualifications in Section A for at least nine months;  and

3. Has served as counsel or as co-counsel and has handled a significant portion of the trial in two criminal cases that have been submitted to a jury;  and

4. In at least one felony trial submitted to a jury, has associated on a pro bono or paid basis as co-counsel with an attorney who has previously tried felony cases and is otherwise qualified to try felony cases under these standards;  and

5. On request, can present an additional showing of expertise and competence in the area of criminal trial practice by submitting at least three letters of reference from other criminal trial lawyers or judges the attorney has appeared before on criminal cases.  The letters must explain why the attorney has special experience and competence to handle felony cases involving potential incarceration of up to five years;  or

6. In lieu of the above qualifications, possesses significant equivalent experience under Standard 3.1.2.b.

C. Major Felony Cases.  Major felony cases include all A and B felonies, all drug felonies, and all homicides other than murder and capital murder cases.

An attorney is qualified for appointment to major felony cases if he or she:

1. Meets the qualifications specified in Section B;  and

2. Has continued to meet the qualifications in Section B for nine months and has had nine months of lesser felony trial experience in a public defender or a district attorney office or in private practice;  and

3. On request, can present evidence of additional expertise and competence in the area of criminal trial practice by submitting at least five letters of reference from other criminal trial lawyers or judges that the attorney has appeared before on criminal cases.  The letters must explain why the attorney has special experience and competence to handle felony cases involving potential incarceration of 20 years;  or

4. In lieu of the above qualifications, possesses significant equivalent experience under Standard 3.1.2.b.

D. Murder Cases.

1. Lead Counsel.  An attorney is qualified for appointment as lead counsel in murder cases, not including capital murder, if he or she:

a. Meets the qualifications specified in Section C;  and

b. Has been trying major felony cases for the past three years;  and

c. Has demonstrated to persons with knowledge of his or her practice a high level of learning, scholarship, training, experience, and ability to provide competent and vigorous representation to defendants charged with a crime for which the most serious penalties can be imposed, including handling cases involving codefendants, a significant number of witnesses, and cases involving suppression issues, psychiatric issues and scientific evidence;  and

d. Has acted as lead counsel or co-counsel in a significant number of major felonies tried to a jury, which should include at least one homicide case that was tried to a jury and went to a final verdict;  and

e. On request, can demonstrate the above by:

1) A written statement by the attorney explaining why the attorney believes that he or she has the qualifications required to handle a murder case;  and

2) Certification from those with knowledge of the attorney's practice, indicating that they believe that the attorney should be allowed to defend murder cases and explaining why the attorney has the qualities required. Certification must include at least five letters from at least two of the following three groups:

a) Judges before whom the attorney has appeared;

b) Defense attorneys who are recognized and respected by the local bar as experienced criminal trial lawyers and who have knowledge of the attorney's practice;  and

c) District attorneys or deputies against whom or with whom the attorney has tried cases;  or

f. In lieu of the above qualifications, possesses significant equivalent experience under Standard 3.1.2.b.

2. Co-counsel.  Co-counsel in murder cases must meet the qualifications in subparagraphs 1.a, b, c, and e of this section or must possess significant equivalent experience under Standard 3.1.2.b.

E. Capital Murder Cases.

1. Lead Counsel.  An attorney is qualified for appointment as lead counsel in capital murder cases if he or she:

a. Meets the qualifications specified in Section C;  and

b. Has been trying major felony cases for the past five years;  and

c. Has demonstrated to persons with knowledge of his or her practice a high level of learning, scholarship, training, experience, and ability to provide competent and vigorous representation to defendants charged with a crime for which the death penalty can be imposed, including handling cases involving codefendants, a significant number of witnesses, and cases involving suppression issues, psychiatric issues and scientific evidence;  and

d. Has acted as lead counsel or co-counsel in a significant number of major felonies tried to a jury, which should include at least one homicide case that was tried to a jury and went to a final verdict.  Lead counsel in capital cases must have acted as counsel or co-counsel in at least one murder case that was tried to a jury and went to a final verdict;  and

e. For appointment as lead or co-counsel in a capital case, has completed, within one year of the appointment, a legal training or education program on capital cases;  and

f. On request, can demonstrate the above by:

1) A written statement by the attorney explaining why the attorney believes that he or she has the qualifications required to handle a capital murder case;  and

2) Certification from those with knowledge of the attorney's practice, indicating that they believe that the attorney should be allowed to defend capital murder cases and explaining why the attorney has the qualities required.  Certification must include at least five letters from at least two of the following three groups:

a) Judges before whom the attorney has appeared;

b) Defense attorneys who are recognized and respected by the local bar as experienced criminal trial lawyers and who have knowledge of the attorney's practice;  or

c) District attorneys or deputies against whom or with whom the attorney has tried cases;  and

g. Has demonstrated the necessary proficiency and commitment that exemplify the quality of representation appropriate to capital cases.

2. Co-counsel.  Co-counsel in capital murder cases must meet the qualifications in subparagraphs 1.a, b, c, e, f, and g of this section or must possess significant equivalent experience under Standard 3.1.2.b.

3. Alternate Procedures.  The appointing authority also may appoint as lead or co-counsel an attorney with extensive criminal trial experience or extensive civil litigation experience, if the attorney clearly demonstrates to the appointing authority that the attorney can and will provide competent representation to the capitally charged indigent defendant.  Attorneys appointed under this paragraph must meet one or more of the following qualifications:

a. Experience in the trial of death penalty cases that does not meet the levels detailed in paragraphs A or B above;

b. Specialized postgraduate training in the defense of persons accused of capital crimes;

c. The availability of ongoing consultation support from experienced death penalty counsel.

Attorneys appointed under this paragraph should be prescreened by a panel of experienced death penalty attorneys to ensure that they will provide competent representation.

4. Limited Case Load.  An attorney shall not handle more than two capital cases at the same time without prior authorization from the State Court Administrator.

 


 

 

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